USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII > Part 71
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For the effectual remedy of those difficulties, it may however be looked to, from the inspectors, to give some information and estimates.
They would, therefore, respectfully suggest, that an appropriation be made by the Legislature, for the en- tire re-construction of the cells of this prison on a plan simi- lar to those of the Eastern Penitentiary. To perfect this plan, an expensive sewer will have to be constructed to the Allegheny river, a more abundant supply of water obtained, and a thorough change in the mode of heating the whole. With these improvements, the board does not hesitate to believe the prisoners would become no longer a charge on their respective counties, and their moral welfare importantly promoted.
The cells of the Eastern Penitentiary have cost a sum of six hundred dollars each.
With the materials of stone and brick which compose the present cells, (196 in number) it is supposed there will be an ample supply for rebuilding the whole. The iron doors, hinges, fastenings, jambs, lintels, &c. &c. can all be made to answer for the new ones, and the whole of the labor (excepting the mechanical part, and some of that) can be supplied from the convicts. The board, therefore, is of opinion, that the construction of the cells anew, such as is now recommended, can be com- pleted for the sum of $300 each, if not less, making then, for 196, a total expenditure of about $60,000 to accomplish the whole. The funds already at the dispo- sal of the inspectors, say $6000, will be adequate to connect the water closets of the cells with, and the construction of the sewer to the river. A sum not ex- ceeding $25,000 will be a sufficient annual appropriation until the whole is completed; more than that could not be judiciously expended during the working season. The above estimate of $300 for each cell is intended to include the payment of such architects and supervi- sion as the board might have occasion to employ.
The board would again respectfully draw the atten- tion of the Legislature, to the propriety of making a small provision for the services of a religious instruction: a permanent supply for this important branch of prison discipline, could not fail to be attended with the most happy effects.
The annual report of the warden, marked A., a tabu- · lar statement from the same officer, marked B., and the report of the physician, marked C., are herewith trans. mitted, for the consideration of the Legislature,
All of which is respectfully submitted.
By order of the board of inspectors, Western Peni- tentiary,
WM. ROBINSON, JR. Secretary.
A. To the Board of Inspectors of the Western Penitentiary of Pennsylvania.
GENTLEMEN.
In my former reports I have urged the necessity of an alteration in the interior of our penitentiary; another year's experience has more fully confirmed me in the opinion, that such alterations should be made as will adapt this institution to a system of regular labour, and as will effectually prevent all communication between convicts, thereby adapting it to the requisitions of our laws relating to penitentiary punishments. I am con- fidlent, that if this prison was altered to the plan of the Eastern penitentiary, and the necessary stock and implements were provided, the prisoners would be enabled to defray all the expenses of their maintenance; and by preventing communication between convicts, they would be preserved from the corrupting and con-
taminating influence of the demoralising conversation and evil example of convicts of different grades of tur- pitude, the hope and probability of the reformation of some of those in whose bosoms there are yet some re- mains of virtue, would be greatly increased, and the incorrigible and desperate villain, by being separated from his associates in crime, and deprived of the satis- faction of conversing with those of congenial minds, would feel his punishment more severely; and if not altogether deterred from again committing crime, would not be likely to commit his depredations within the district in which, if detected, he would be certain of being again doomed to a similar punishment. To the wicked and determined villain this prison appears to possess little or no terror; after the discharge of such, they frequently remain in the vicinity of the prison, spending their time in idleness, without any visible means of support, and frequently call at the prison to inquire concerning those with whom they had become acquainted while in confinement. So little do they re- gard the confinement in this prison, that of the forty- eight prisoners received into this penitentiary during the year 1832, five were recommitments of persons who had served tours in this prison, and had been but a short time discharged.
The present is undoubtedly the most suitable time for making the alterations, as the present number of con- victs can be secured in one part of the prison, whilst the alterations are being made in another. Should the number of prisoners increase in the proportion they have done during the last year, the time will soon ar- rive when it will be difficult, if not altogether imprac- ticable, to make those alterations, as there would not be sufficient room in the prison to secure the convicts and make the improvements at the same time. In sup- port of my opinion, that the prisoners at labour, under proper regulations, would defray the expenses of their maintenance, I will direct the attention of the board of inspectors to the amount earned by the shoemakers in this prison during the last year, (and it will be admit- ted that with them there has been much waste of time, and unavoidably some waste of materials, which has lessened the amount of their earning;) there has been an average of about four shoemakers at work, who have earned $315, or $79 cach; the expenses of their maintenance, on an average, is a little less than $60 each, which for four prisoners would be $240, which taken from $315, leaves $75 of a surplus, after defray- ing all expenses of their maintenance.
The whole expense of maintenance of convicts in this prison during the year 1832, is $4761 84, and there has been earned by shoemaking $315, by picking oak- um $485 47, and by various other labour $133 87, amounting in all to $934 34, leaving a balance to be paid by the counties, of $3827 50. By the tabular statement herewith presented, it will be seen that for- ty-eight prisoners have been received into the peniten- tiary during the year 1832, twelve have been discharg- ed by expiration of their sentences, ten by pardon, and two have died, sixty-four being the number in prison on the first of January, 1832, leaves eighty-eight in prison on the first of January, 1833.
I will conclude with the sentiments of that excellent officer, Samuel R. Wood, Esq. warden of the Eastern penitentiary, adopting them as my own. I am "fully convinced that separate confinement, with labour and moral religious instruction, is the most perfect and most beneficial system for the management of convicts," which has ever been devised or put into practice, "em- bracing in its details all the advantages, and avoiding most of the evils, which are inherent in every other plan which has occupied" the attention of the philanthro- pist.
All which is respectfully submitted.
JOHN PATTERSON, Warden of the Western Pennitentiary of Pennsylvania. January 11th, 1833.
TABULAR STATEMENT, B.
Age.
Sex.
Place of Nativity.
When sentenced.
Time.
Offence.
At what Court sentenced.
l'imes convicted.
When and how discharged.
1 26| Male.
Carlisle, Pa.
August 8, 1827
21 years.
Rape
O. T. Allegheny county
First Second
Feb. 22, 1832, pardoned do do du
3 63
New Jersey
July 28, do
4.
do
Passing counterfeit coin Mayor's Court, Pittsburg
4 30
New Jersey
August 4, 1829
3
do
Larceny
Q. S. Allegheny county Q. S. Allegheny county Mayor's Court, Pittsburg
Second
Feb. 22, 1832, pardoned
7 52
Delaware
August 28,
do
4
do
Subornation of perjury
/Q. S. Beaver county Mayor's Court, Pittsburg Q. S. Centre county
do
do
do
do
8 26
County Down, Ireland
December 8, do January 27, 1830
4
do
Larceny
Q. S. Centre county
10 35
Centre county, Pa.
January 27, do
3
do
Larceny
Q. S. Washington county
do
12 21
Washington county Pa.
do 25,
do
12
do
Murder
O. T. Allegheny
14 39
Baltimore
do 24,
do
5
do
Murder
O. T. Mifflin county
do
15 37
County Derry, Ireland
May 29,
do
7
do
Murder
O. T. Westmoreland county
16 24
Lancaster county, Pa.
January 21,
do
5
do
1
17 26
Dublin, Ireland
July 8,
do
2
do
Larceny
Q. S. Cambria county
18 25
Baltimore county, Md.
October 6,
do
2
do
Larceny
Q. S. Washington county
do
19 54
Lancaster county
do
23,
do
21
do
Robbing U. S. mail
Dis. Court U. S., W. district
do
20,24
County Longford, Ireland
Nov.
18,
do
5
do
Rape
O. T. Miffin county
21 36
County Caven, Ireland
do
18,
do
5
do
Rape
O. T. Miffin county
do
22 33
Little York, Pa.
do 16,
do
3
do
Larceny
Q. S. Mifflin county
23 34
Mount Vernon, Va.
do
27,
do
3.
do
24 26
Fayette county, Pa.
January 6,
1831
1
do
Larceny
Q. S. Fayette county
25 37
Connecticut
February 8,
do
3
do
Burglary
O. T. Erie county
26 25
Crawford county, Pa.
do
8,
do
1
do
Burglary
Q. S. Erie county
do
27,22
Sussex county, N. J.
do
18,
do
2
do
Larceny
Mayor's Court, Pittsburg
do
28 40
Bordeaux, France
do
16,
do
1 do
¡ Larceny
Q. S. Fayette county
29,47
Somerset county, Pa.
clo
11,
do
3
do
Burglary
O. T. Fayette county
do
31 19
Fayette county Pa.
do
9,
do
5
do
Burglary
Q. S. Armstrong county
clo
32,27|
Westmoreland county, Pa.
do
26,
do
do
30,
do
1 year.
34.27 Male.
Butler county, Pa.
April 7.
do
2 years.
Larceny
O. T. Allegheny county
do
35 23
Allegheny county
do 24,
do
4
do
36 38
Massachusetts
do 21,
do
1
do
Forgery
37 51
Massachusetts
May 5,
do
3
do
38 45
Portsmouth, England
May 11,
do
2
do
Larceny
Counterfeiting coin
O. T. Huntingdon county
do
39 37
Berkely county, Va.
1828
5
do
4.0125
Allegheny county, l'a.
August 16, May 28,
do
4
do
Arson
O. T. Westmoreland county
Second
5
do
Horse stealing .
Q. S. Butler county
2 26
Clark county, Ohio
First Second First
Aug. 4, 1832, time out Aug. 6, 1832, pardoned
5 22
Uniontown, Fayette co.
August 6, do
do
3
clo
Larceny
First
9 30
Washington city
4.
do
Larceny
Q. S. Washington county
do
Dec. 15, 1832, pardoned
11 47
Washington county, Pa.
March 29, do
3
do
Larceny
do
13 54
Lancaster county, Pa.
April 23,
do
Assault and battery, in- tent to ravish
Q. S. Mifflin county
Second First
July 8, 1832, time out Oet. 6, 1832, time out
April 7, 1832, pardoned Jan. 6, 1832, time out
Feb. 8, 1832, time out
Feb. 16, 1832, time out March 6, 1832, pardoned
March 11,
do
2
do
Larceny
do
30 19
Cressapstown, Md.
O. T. Fayette county
Burglary
Q. S. Washington county
do
33,18 Femle. Detroit
Larceny
-
Q. S Butler county
dlo
Robbery
Q. S. Mercer county
do
Nov. 25, 1832, died April 21, 1832, time out Jan. 4, 1832, pardoned -
[OCTOBER
REPORT ON WESTERN PENITENTIARY.
244
Sept. 26, 1832, time out March 30, 1832, time out
Counterfeiting coin
Dist. Court U. S., W. District
lo
Mayor's Court, Pittsburg
do
1
-
3
do
Larceny
6 43
County of Mohanon, Ireland October 31,
3
do
Larceny
do
do
do
Assault & bat'ry, intent
do
to commit a rape, &c. Q. S. Venango county
do
do
do
.
Mayor's Court, Pittsburg
do
18 months.
do
do
July 9, 1828
No.
41/211 42 34 43 27
¡Ohio Oneida county, N. Y.
June 28, August 6,
1828 1831
3 years
Larceny
O. T. Erie county
do
Connecticut
August 6,
do
4
do Burglary
do
August 6, do
2
do Passing counterfeit coin
1
do Larceny
45 42 46 28
Montgomery county, N. Y.
August 12,
do
2
do
Larceny
Q. S. Huntingdon county
Chester county, Pa.
August 12,
do
2
do
47 301
48 48
Chester county, Pa.
August 18,
do
2
do
Assault and battery, in- tent to ravish
Q. S. Crawford county
do
August 27,
do
2
do
49 43 50 45
Cumberland county, Pa. County Antrim, Ireland,
August 24,
do
2
do
Assault, &c. intent to commit rape '
O. T. Centre county
do
51 28
New Jersey
October 5,
do
do
52 27
Philadelphia
September 30, do
1
do
53 34
County Antrim, Ireland.
October 26,
do
10 do
54 18
Pittsburg
County Tyrone, Ireland
October 27, do
3 do
Assault, &c. with intent to commit rape
O. T. Allegheny county
do
October 31,
clo
5 do
56 41
Fayette county, Pa.
October 29,
do
6 do
57 26
Maryland
October 29,
do
3
do
58 45
County Laitrim, Ireland
November 17,
do
2
do
59|29
Centre county, Pa.
November 19,
do
8
do
Murder
O. T. Huntingdon county
do
60 23
Adams county, Pa.
November 22,
do
18
months
Larceny
Q. S. Mifflin county
61 29 62 29 63|21
Somerset county, Pa.
Second
64 30
Westmoreland county, Pa.
January 10,
1832
do
1 year
Larceny
Q. S. Centre county
66|15
Huntingdon county, Pa.
January 24, March 2,
do
18 months
Concealment of death, &c of her bastard child
O. T. Venango county
do
68 25
male. Beaver county, Pa.
do 16,
do
4 do
Larceny
69 23
Franklin county, Pa.
do 16,
do
4
do
Larceny
70|30
Pittsburg, Pa.
April 17,
do
9 months
Larceny
Q. S. Westmoreland county
71|21
| Germany
do 27,
do
do
2 do
Larceny
Q. S. Erie county
First
74 32
Franklin county, Pa. Geauga county, Ohio
do 9,
do
22 do
Burglary
O. T. Erie county
75 20
Delaware county, N. Y.
do 9,
do
3
do
.77 27
Clark county, Ohio
June 6,
do
4
do
78 29
Massachusetts
do 12,
do
1
do
79 39
Huntingdon county, Pa.
do 16,
do
2
do
Larceny,
1
do
80 22
Windsor county, Vermont
do 27,
do
2
do
81 23
82 19
Westmoreland county, Pa.
do 28,
do
2
do
83 48
Massachusetts
August 9,
do
2
do
84 32
Chambersburg, Pa.
do 17,
do
2
do
Fraud
Q. S. Crawford county
clo
Oct. 13, 1832, pardoned
REPORT ON WESTERN PENITENTIARY.
245
1833.]
Nov. 20, 1832, pardoned Sept. 30, 1832, time out
Third
Larceny
Q. S. Indiana county
First
Arson
O. T. Allegheny county
55 43
do
Manslaughter
O. T. Fayette county
Manslaughter
O. T. Fayette county
do
Larceny
Assault, &c. intent to kill Q. S. Huntingdon county
do
Massachusetts
December 7, do
do
23 do
Horse stealing
Q. S. Somerset county
do
December 9,
December 20,
do
10 do
Conspiracy
Q. S. Huntingdon county
First
65 41
Connecticut
do
67 24.
fem.
Butler county, Pa.
March 8,
do
5 years
Buggery
Mayor's Court, Pittsburg Mayor's Court, Pittsburg
Third
First
do
72 30
County Tyrone, Ireland
Fourth
73|47
Mifflin county, Pa.
May 9,
do
2
do
Larceny
do
do
Third
First
Second First
Franklin county, Pa
do 16,
do
Larceny
Mayor's Court, Pittsburg Mayor's Court, Pittsburg Q. S. Allegheny county
do
Horse stealing
O. T. Allegheny county
do
Burglary
Receiving stolen goods
Q. S. Erie county
do
Q. S. Allegheny county
First do
Burglary
O. T. Erie county
New Hampshire
4.4 31
New Hampshire
Q. S. Huntingdon county
do
do
Larceny
O. T. Westmoreland county
do
Manslaughter
Horse stealing
Q. S. Beaver county
do
September 9, do
33 do 2
Larceny
Mayor's Court, Pittsburg
do
do
Westmoreland county, Pa.
do
Q. S. Warren county
do
2 years
Larceny
Horse stealing, & burg'y O. T. and Q. S. Washington co
do
0. 1. Beaver county
Second
Murder
O. T. Huntingdon county
Q. S. Centre county
76 21
Horse stealing
Q. S. Beaver county
Mayor's Court, Pittsburg
Larceny
and passing counterfeit money
Burglary
O. T. Erie county
-
2 do
Q. S. Erie county
Q. S. Erie county
do
August 6, do
10 years
do 25,
18 months
Q. S. Fayette county
246
TABULAR STATEMENT, B.
Times convicted.
When and how discharged.
No.
Age.
Sex.
Male
Erie county, N. Y.
do
15,
do
2
do
Passing count'ft notes
do
do
24,
do
6 months
Larceny
-
do
do
28,
do
1 year
Horse stealing
do
do
28,
do
13 months
Larceny
Third
89 27
September 8,
do
1 year
Q. S. Beaver county
do
91 32
do
8,
do
2
do
do
92 39
do
1,
do
2
do
do
do
26,
do
2
do
Larceny
do
do
26,
do
2
do
Larceny
do
October 3,
do
1
do
Larceny
do
96 22
do
5,
do
1
do
Larceny
do
97 22
do
4,
do
1
do
Larceny
do
98 13
do
10,
do
2
do
Larceny
do
99|36
do
100 25
New York
Mayor's Court, Pittsburg
do
10121
do
102 19
do
103 48
do
104 43
do
105 33
1 do
Larceny
Mayor's Court, Pittsburg
do
107 28
do
108|36
do
109 20
Germany
do
110 46
do
111:39
Horse stealing
do
112.50
do
e
Recomm'dDec, 16,'32
Oct. 13, 1832, pardoned.
August 14,
1832
2 years
Larceny
do
86 28
Union county, Pa.
Q. S. Westmoreland county
87|19
Franklin county, Pa.
Q. S. Bedford county
88 27
York county, Pa.
Q. S. Beaver county
First
90 39
Washington county, Pa.
do
8,
do
2 do
Larceny
Q. S. Beaver county
Larceny
O. T. Venango county
93 42
Bedford county, Pa.
Q. S. Indiana county
94 26
Indiana county, Pa.
Q. S. Indiana county
95 24
Washington county, Pa.
Mayor's Court, Pittsburg
Chester county, Pa.
Q. S. Washington county
Washington county, Pa.
Mayor's Court, Pittsburg
England
do
11,
do
4
do
5
do
do
11,
do
1
do
Larceny
do
23,
do
do
4 months
Larceny
Baltimore
November 16,
do
4 do
Conspiracy
Mayor's Court, Pittsburg
do
106 45
do
5,
do
1
do
Larceny
Q. S. Centre county
November 30,
do
18 months
Larceny
Q. S. Allegheny county
December 27, do
do
6 do
Larceny
Q. S. Allegheny county
7 do
Larceny
On the Atlantic Ocean
27,
do
Assault; &c.intent to kill|Q. S. Huntingdon county
November 15,
do
18 do
Cecil county, Maryland
Mayor's Court, Pittsburg
July 24,
1827
5
do
Escap'd Nov.21,1828
Remaining in prison on the first of January, 1832, 64 prisoners-Received into the penitentiary during the year 1832, 48-Total, 112. Discharged during the year 1832, byl expiration of sentence, 12; by pardon, 10; died 2-24. Remaining in prison on the first day of January, 1833, 88 prisoners. White males remaining in prison January 1st, 1833, 74-Colored males, 12 -- Total number of males, 86. White females remaining in prison January 1st, 1833, 1-Colored female, 1-Total number of females, 2. Whole number of males, 86-Whole number of females, 2 .- Total, 88.
[OCTOBER
REPORT ON WESTERN PENITENTIARY.
When sentenced.
Time.
Offence.
At what Court sentenced.
Place of Nativity.
First
Q. S. Crawford county
Q. S. Huntingdon county
85 22
Germany
Q. S. Bedford county
Larceny
0000
Albany, N. Y.
New Jersey
Arson
Mayor's Court, Pittsburg
Mayor's Court, Pittsburg
Larceny
Kentucky
Q. S. Allegheny county
Green county, Ohio
do
23,
4 years
Conspiracy
Luzerne county, Pa.
do . 16,
do
December 5.
do
City of New York
Northumberland co. Pa.
Q, S. Allegheny county
Q. S. Huntingdon county
Q. S. Huntingdon county
Northumberland co. Pa.
County Down, Ireland
[County Caven, Ireland
Larceny
Indiana county, Pa.
247
FIRING CANNON ON THE FOURTH OF JULY.
1833.]
C. WESTERN PENITENTIARY, OF PA. 2 January 1, A. D. 1833.
To the Inspectors:
I have the honor to report, that during the past year, there have been in the Western Penitentiary of Penn- sylvania 96 cases of sickness, and two deaths. It will be seen by the list annexed, that there has been a dimi- nution from last year, of cases of rheumatism, probably from the greater dryness of the cells; and that the cases of diarrhea were three times as numerous as in the pre- ceding year. How far this increase of diarrhea may be accounted for from the gradual increasing foulness, unavoidable in the present arrangements, and how far it may have been owing to the peculiar influence of the general atmosphere last summer, it is difficult to say. Neither can this prison, as now constructed, afford a fair trial of the effects of confinement on the health of convicts. The want of ventilation; the retention of foul night pans in the cells for twelve hours at a time; and the offensiveness of the privies, contribute no little to disorder the health I beg leave to recommend that the cells be so constructed as to admit of ventilation, and of the excrement passing off by means of water closets to a sewer leading to the river; the sewer to be kept con- stantly clean, and for that purpose, that some means of furnishing a more abundant supply of water be provid- ed. Should the cells be re-modelled and enlarged to the plan of those of the Eastern Penitentiary, there will be no need of an infirmary; the sick can then be attend- ed in their cells, and the necessity of removing them to a larger room will no longer exist-an operation which ought always, if possible to be avoided, as equally in- convenient and hazardous, in the discipline of a prison. I beg leave, however, to recommend the erection of a bath house, in connexion with the undressing room, af- ter the plan of the building for similar purposes, in the penitentiary at Philadelphia.
It is my opinion that a prison constructed, ventilated, and supplied with water, on the plan of the Eastern Pe- nitentiary, would lessen the expenses to the several counties, not only in enabling the institution to obtain more labor from the convicts, but in lessening disease, and of course the annual expense for medicines.
Very respectfully, W. H. DENNY, M. D., Physician of the W. P. of Pennsylvania.
LIST OF CASES OF SICKNESS, FOR 1832.
Diarrhea
36
Chronic rheumatism
11
Obstinate costiveness 15
Dyspepsia 2
Syphilitic rheumatism
2
King's evil
3
Eruptions of the skin
3
Sore mouth
3
Inflamed eyes
1
Neuralgia
1
Consumption (fatal)
2
Ague & fever, originating east of the Allegheny mount's Gravel
4
Bloody urine
1
Epilepsy
1
Rupture 1
Bronchitis
1
Pain in the breast 2
Inflammation of the lungs
1
Influenza
5
Sick on the 31st day of December, 1832, none.
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of Erie, on this day. The justice fined the persons who had fired-they appealed, and the case as it came up in the common pleas is thus given in the Erie Observer. Shippen, president judge.
Com. Pleas, Erie county, Aug. Term, 1833. Benjamin Deffinbaugh et al. Plaintiffs in error v8. Samuel Agnew, who sues for himself, as well as for the Commonwealth.
This was a certiorari to William Kelly, Esq. Justice of the Peace.
From the return of the proceedings had before the Jus- tice, it appeared that Samuel Agnew brought suit to re- cover the penalty of firing a gun within a borough town, under an old act of Assembly, enacted in the year 1750. Benjamin Deffinbaugh and others, on the 4th of July, 1833, were members of a volunteer company,and on tha day, in pursuance of the orders of their Captain (How- ell) had fired a cannon within the borough of Erie six- teen times. To the information filed by Agnew, they severally plead guilty, whereupon judgment was given against them for five shillings for each and every time, and cost of suit. Ramsey, Barrett, and Galbraith, ap- peared as counsel for the defendants below. Walker and Riddle for the Commonwealth. The following er- rors were thereupon assigned by the counsel for the de- fendants below, to the judgment of the justice:
1st. The offence is entirely statutary, and is not in the words of the statute, in either the information, war- rant, or conviction with sufficient precision. It is not stated that the alleged offence was committed "within" the borough of Erie-nor that Erie is a county town, or other town or borough within this (province) common- wealth.
2. There can be but one offence committed, and con- sequently but one penalty, and the conviction of the justice is for 16 offences committed at one time.
3. The conviction is too uncertain in not stating the entire amount, he adjudged the defendants to pay. It is left as a matter of future calculation and computation.
4. The conviction is also too uncertain to be carried into effect in being rendered in a foreign currency, and not reduced to any certain amount in currency of the United States.
5. The law under which the conviction took place is unconstitutional and obsolete.
6. The conviction is at all events void as it respects costs.
7. There was no cause of action.
8. The judgment was illegal.
Ramsey on behalf of the defendants below, was about proceeding to argue the points before the court, and to cite the law, when he was stopped by
The Court .- We do not wish to hear counsel on behalf of the defendants until the prosecutor shows that the act of 1750 is still in force. It is our impression that the act is in this instance obsolete, and on this point we will hear the prosecutor.
Walker .- The act of assembly has never been re- pealed, and convictions have been had under it. Coun- sel around me say they know of convictions within their recollections. The act is not unconstitutional, &c.
The Court .- The common custom practised in, uni- versally, for fifty-seven years, of firing cannon on the 4th July, has become common law; and this is the first time that ever a court of justice has heard of a prosecu- tion for firing cannon on that day. On a certiorari, where it is reversed, it is common law for the prosecu- tor to pay the costs. Judgment of Justice Kelly re- versed.
We have been furnished with the following opinion of the Hon. Judge Shippen, in a case which has recent- ly been before our readers. We refer to the prosecu- tion of the gunners in an artillery company, for aiding in the celebration of our nation's anniversary by the firing of cannon.
From the Harrisburg Chronicle.
FIRING CANNON ON THE FOURTH OF JULY.
A suit was instituted in Erie county before a justice against certain persons for firing a cannon in the streets
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248
IMPROVEMENT OF THE MONONGAHELA RIVER.
[OCTOBER
Diffenbaugh and others, ADSM. CERTIORARI.
The Commonwealth.
There are eight exceptions in this case. Without considering the others, the conviction is to be reversed chiefly on two grounds.
1. The judgment is vague and uncertain, in not stat- ing with precision the amount which defendants are ad- judged to pay. Nor does the record state to whom the fine is payable, whether to the borough of Erie, or to Mill creek township; within which Erie is or lately was situated, and of which the borough of Erie lately form- ed part; nor does it state what sum or part, or to what person as informant, the fine or fines, whatever they be, are to be paid. The execution must follow the judg- ment, and it will not do to leave all these matters to the constable to search up and decide, among the several old laws on this subject. It would be to make the con- stable a judge on difficult points. Further. For these fifty-seven years, ever since the 4th of July, 1776, it has been so universal a practice throughout the whole land, to fire cannon and musketry,by the volunteer com- panies in celebration of that day, that we might say it has become the common law of the land, by common and universal consent, superceding the old statute and the statute of Geo. I. therein referred to. A much shorter time has fixed and established a common law among us different from the English law, by a change of the nature of our government, and under our consti- tution of 1790. I mention, for instance, the payment of fees to Prothontary not becoming due till the termina. tion of suit. The failing party, in certiorari, generally having to pay the costs, although the law is different in writs of error; and this has received legislative sanction by act of 1810. This is probably the first attempt, since the establishment of our government, to restrain the. celebration of the fourth of July, by a prosecution in the name of the commonwealth. If an individual injury had been done, there is always redress by a civil action for damages. But that is not now the question. It is whether the citizens may celebrate the anniversary of Independence as they have used to do for upwards of fifty years, without a petition to his Excellency, the Governor of the state, for leave to do so. It would be somewhat novel for the Governor of Pennsylvania to be granting letters of license, pursuant to the statute of 1752 for that purpose. If that statute is generally in force, his leave might, without any restrained presump- tion, be presumed universal in the state for that special occasion.
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